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The Intake Prosecutor: Prosecutorial Screening Before the Police Make Warrantless Arrests

37 Pages Posted: 18 Sep 2017  

Adam M. Gershowitz

William & Mary Law School

Date Written: September 14, 2017


Each year, police arrest more than eleven million individuals. Yet, prosecutors ultimately dismiss about twenty-five percent of criminal charges with no conviction being entered. Those numbers tell us that there are inputs needlessly clogging the criminal justice system. Jails are holding pre-trial detainees who will not end up being prosecuted. Prosecutors are dealing with cases that they will ultimately dismiss. Public defenders are over-extended in part because of cases that never should have been on their plate in the first place. And, of course, suspects are suffering through needless pre-trial incarceration. All of this suggests the criminal justice system should do a better job screening which cases are input into the system in the first place.

Based on interviews with more than forty prosecutors’ offices across the country, this article describes how police – not prosecutors – call the shots about who is input into the criminal justice system. While many prosecutors’ offices are available by phone to answer questions from police at the moment of arrest, prosecutors rarely dictate or even offer guidance about who to arrest. Prosecutors from multiple offices maintain that it would be “impossible” for prosecutors to screen warrantless arrests while the officer and the suspect are still on the street. Yet, in one of America’s largest counties, police are forbidden from making a single warrantless arrest without pre-clearing it with prosecutors. And those prosecutors regularly reject charges and require the police to release the suspect at the scene.

Prosecutorial screening of warrantless arrests helps individuals by preventing wrongful arrests, unnecessary bail, embarrassing mug shots, loss of employment, and wrongful convictions. Avoiding unnecessary arrests also reduces jail overcrowding, and lowers the burden on judges, clerks, prosecutors, public defenders, and even the police. Yet, in almost all jurisdictions, prosecutors do not screen warrantless arrests. This article explores how prosecutors in more than forty different offices interact with police at the moment of warrantless arrests. It makes the case for rigorous prosecutorial screening before any suspect is taken into custody.

Keywords: prosecutors, screening, warrantless arrest, dismissals, dismiss, overcrowding, excessive caseloads, overcharging, wrongful arrests

Suggested Citation

Gershowitz, Adam M., The Intake Prosecutor: Prosecutorial Screening Before the Police Make Warrantless Arrests (September 14, 2017). Available at SSRN:

Adam M. Gershowitz (Contact Author)

William & Mary Law School ( email )

South Henry Street
P.O. Box 8795
Williamsburg, VA 23187-8795
United States

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